State v. Cook, 61 N.C. 535, 1 Phil. 535 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 535, 1 Phil. 535

STATE v. JOHN D. COOK.

The amnesty act of 1866-67, ch. 8, was not intended to exempt soldiers from punishment because they were soldiers, but only for ads committed by them as soldiers; therefore :

Where the prisoner was'eharged with breaking a dwelling house and stealing a watch, money, &c. and he failed to show that he acted under military orders, or in the discharge of a military duty, the fact that he was a soldier was held so be no bar, under the plea of the amnesty act, to a prosecution for burglary.

It appearing in this court, upon appeal by a prisoner, that a verdict of guilty had been entered below, the court cannot arrest the judgment because the judge had not the power to impose the punishment ordered by him, but as’ the appeal vacated that judgment, must send the case down for such judgment as the law allows.

(State v. Blalock, ante p. 243 cited and approved.)

Burglart, tried before Gilliam J. at Fall Term 1867 of the Superior Court of McDowell.

The prisoner was indicted in the Superior Court of Rutherford, Spring Term 1867, with one Alphonzo Johnston, for breaking into the house of one J. A. Sweet in the night-time, and stealing a rifle, a, watch and fifty dollars in gold. The prisoner was arraigned in that court, but upon affidavit his trial was removed to McDowell.

The fact of the breaking and robbery by the prisoner was established and he relied on the plea of the act of “Amnesty and Pardon,” ratified the 22d day of December 1866. The prisoner entered the Confederate army as a conscript in 1863 but was a deserter in the month of February 1865, when the offence was committed. These facts being admitted a verdict of guilty was entered subject to the opinion of his Hon- or as to whether the prisoner could take any benefit from the above act of Assembly, The court, being of opinion that he could not, under a military order issued by the Commander of this District gave judgment of imprisonment against the prisoner, and he appealed.

Merrimon, for the appellant.

Atto. Gen., contra.

Reade J.

The amnesty act of 1866--7 provides that no officer or private, in either the United States or Confederate armies, shall be held to answer on any indictment for any act done in discharge of any duties imposed on them by the laws of the United States, or of the Confederate States, or by virtue of any army order. And in construing that act, in State v. Blalock, ante 142, we said that “it embraces all who may be supposed to have committed crimes or injuries, by reason of their connection with the late war, whether they were officers or privates; whether they were of the Federal or Confederate forces; and whether they have been convicted or not.” The defendant craves the benefit of that act. But it cannot be allowed him; because it does not appear that his offence had any connection with his war duties.

It is not alleged that he acted under any military order, or in the discharg’e of any military duty. He is charged with breaking a dwelling’ house and stealing a rifle, a watch and fifty dollars. It is not to be presumed that such conduct had any connection with his war duties. It was not the [intention of the act to exempt persons from punishment merely because they were soldiers; but only for acts which they committed as soldiers.

There was a motion in arrest of judgment, for the reason that the punishment ordered by his Honor was unauthorized. Suppose that to be so, we • cannot arrest the judgment, because there is of record the verdict of guilty, and some judgment is necessary.

The appeal vacates the judgment which was announced, and we can only say that there is no error in the record, and send the case back for such judgment as the law allows.

There is no error. Let this be certified, &c.

Per Curiam. Judgment affirmed.